Information about probate law and probate lawyers in Miami, Florida, the Florida probate process, and how to probate a will in Miami, Florida. The Florida probate rules and procedures set forth in this information will help you understand the probate process as it is applied in Miami-Dade County, Florida.

Florida probate law establishes two types of probate filings for the administration of estates:

1. Formal Administration, with which most of this article deals. Formal probate administration involves estates that have assets which total more than $75,000 in value, or have creditor claims that must be resolved in the Miami, Florida probate court, or if there is a will challenge or a probate with a will contest, or there is estate litigation, that must be heard by the Florida probate judge.

2. Summary Administration involves an estate with less than $75,000 of "non-exempt" assets, or the deceased died more than two years prior to filing the summary probate procedure. "Non-exempt" assets are those assets that under Florida probate law are not subject to the claims of the creditors of the probate estate.

Florida law also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration." (Back to the Top)

2. WHAT ARE FLORIDA PROBATE ASSETS?
Generally, Florida probate assets are those assets that are titled in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death and no beneficiary designation. Under the Florida law of probate for example:

• a bank account in the sole name of a decedent is a Florida probate asset and is subject to probate, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a Florida probate asset and is not controlled by the decedent's last will and testament, and therefore is not subject to probate;

• a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a Florida probate asset and not subject to probate, but a policy payable to the decedent's estate is a Florida probate asset subject to probate administration in the court of probate;

• real estate titled in the sole name of the decedent or as a tenant in common with another person, is a Florida probate asset (unless it is exempt Florida homestead) and is subject to probate, but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset and is not subject to probate;

• property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse regardless of what disposition of the asset may be contained in the decedent's last will and testament.

This list is not exclusive but is intended to be illustrative of those assets that are subject to probate or that are not subject to probate under Florida probate law. (Back to the Top)

3. WHY IS PROBATE NECESSARY UNDER FLORIDA LAW?

The Florida probate administration of estates is necessary to wind up the affairs the decedent leaves behind. When you probate a will, It ensures that all of the decedent’s creditors are properly paid. Florida laws of probate administration also serve to transfer assets from the decedent's individual name to the proper beneficiary of the probate estate. Florida has had probate laws in force since becoming a state in 1845. Florida probate law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid last will and testament. (Back to the Top)

4. WHAT IS A LAST WILL AND TESTAMENT?

A last will and testament is a legal document, in writing, signed by the dcedent and witnesses, which meets formal requirements set forth by
Florida probate law. A last will and testament usually designates a personal representative (sometimes referred to a the "executor") to administer the Miami, Florida probate estate and names beneficiaries to receive probate assets. A last will and testament can also do other things under the law of probate, including establishing a testamentary trust and designating a trustee, and very importantly naming the person or persons you want to become the guardian of your minor children.

To the extent a last will and testament properly devises probate assets and designates a personal representative pursuant to the Florida law of probate, the last will and testament controls over the automatic provisions set forth under Florida probate law. In the absence of a valid last will and testament in probate, or if the last will and testament fails in either respect, Florida intestacy law designates the beneficiaries and designates the way to select the personal representative of the Florida probate estate. Florida lawyers experienced in estate planning can assist you with obtaining a last will and testament that is valid under Florida law and will help you avoid problems that can arise when someone seeks to prepare a last will and testament for themself, without the knowledge, understanding, and experience necessary to properly and effectively comply with Florida probate law.(Back to the Top)5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO LAST WILL AND TESTAMENT?

Contrary to the belief of some, the decedent’s probate assets are not turned over to the State of Florida under the Florida law of probate unless no intestate heirs can be found. If there is no will and testament in probate, the probate assets of the decedent will be distributed to the intestate heirs under the Florida law of probate as follows:

• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the probate estate.

• Surviving spouse and lineal descendants.

1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the remaining probate estate, and the lineal descendants share the remaining half of the Florida probate estate.

2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the in probate assets and the lineal descendants share the remaining half of the in probate assets.

• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the probate estate, which is initially broken into equal shares at the children's level, with a deceased child's share going to the descendants of that deceased child.

• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The Florida intestacy law provides for further disposition if the decedent is survived by none of these.

• Exceptions to Above. The above provisions are subject to certain exceptions for Florida exempt homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding exempt Florida homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the Florida exempt homestead, with the lineal descendants of the deceased spouse receiving the exempt Florida homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the exempt Florida homestead outright. (Back to the Top)

6. WHO IS INVOLVED IN THE PROBATE PROCESS IN MIAMI FLORIDA?

While there may be others, the following is a list of persons or entities often involved with filing probate in the Florida probate process:

• Clerk of the Circuit Court for Miami-Dade County located at 73 W. Flagler Street, Miami, Florida, or the probate office for the county in which the decedent resided at the time of death, is the Florida court of probate and the place where all probate court forms are filed (See Question 7).

• Circuit Court for the 11th judicial circuit of Florida in Miami-Dade County, Florida, or the probate office for the Circuit Court for the county in which the decedent resided at the time of death is the court of probate(acting through a Circuit Court Judge, See Question 8).

Probate documents, probate court forms and papers are filed with the Clerk of the Circuit Court, for Miami-Dade County, at the probate office located at 73 W. Flagler Street, Miami, Florida, or with the probate clerk of the court of probate for the Florida county where the decedent lived. A probate filing fee must be paid to the probate clerk to commence the Florida probate administration to probate the will in Florida. The probate clerk assigns a file number and maintains a docket sheet which lists all probate court forms and other papers filed with the probate clerk, and the probate records for that probate administration. (Back to the Top)

8. WHO SUPERVISES THE MIAMI FLORIDA PROBATE ADMINISTRATION?

Upon the filing of a probate case, a Miami-Dade Circuit Court Judge is assigned as the probate judge that presides over the Florida probate proceedings in the Miami-Dade County court of probate. The Miami probate judge appoints the personal representative and issues "letters of administration," also referred to simply as "letters," or "letters testamentary." This probate document shows to the world the legal authority of the personal representative to act on behalf of the Florida probate estate. The Florida probate Judge also holds hearings in the probate office when necessary and resolves all questions of probate law raised during the administration of the estate by entering written directions called "orders." (Back to the Top)

9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?

Under the law of probate, the personal representative is the person, bank or trust company appointed by the probate court to be in charge of the administration of the Florida probate estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."

The personal representative is directed by the probate court to administer the probate estate pursuant to Florida probate law to probate a will. The personal representative's (executor's) duties and responsibilities under the Florida law of probate for the probate of wills include:

• Identify, gather, value and safeguard probate assets during the probate process and prepare a probate inventory of the probate assets that must be filed with the Florida probate court, and distributed to any interested person of the estate.

• Publish a "notice to creditors" in a local newspaper, giving notice to creditors or others with claims against the probate estate, and file other legal documents and papers relating to the Florida probate estate.

• Serve a "notice of administration" on specific persons, giving information about the estate administration and giving notice of requirements to file with the Florida probate court any objections relating to the probate estate within the applicable probate timeline.

• Conduct a diligent probate search to locate "known or reasonably ascertainable" creditors, and notify them of the probate timeline by which their claims must be filed with the Florida probate court.

• Object to improper claims and defend law suits brought on such claims against the Florida probate estate through what is called estate litigation.

• Pay valid claims of the Miami, Florida probate estate as defined by the Florida law of probate.

• File estate tax and income tax returns for the Florida probate estate.

• Pay estates taxes or other taxes owed by the Florida probate estate.

• An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relatives, can serve as personal representative of the Florida probate estate according to the Florida law of probate.

• A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative of the Florida probate estate. (Back to the Top)

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE IN A MIAMI-DADE COUNTY PROBATE?

• If the decedent left a valid last will and testament, the designated personal representative nominated in the last will and testament has preference to serve as the executor of the will.

• If the decedent did not leave a valid last will and testament, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the intestate heirs of the Florida probate estate. (Back to the Top)

In almost all instances in the probate process the personal representative must be represented by a Florida probate attorney. Many legal issues arise under Florida law in the probate of wills, even in the simplest probate estate administration.

The Florida probate attorney for the personal representative advises the personal representative on rights and duties of the executor under the Florida probate law, the probate court forms that must be filed in probate, and represents the personal representative in probate estate proceedings. An experienced probate lawyer can be invaluable to the personal representative of the Florida probate estate. The probate attorney for the personal representative is not the probate attorney for the beneficiaries of the probate estate. The beneficiaries must select their own personal probate lawyer if there is any kind of challenge by the beneficiary, or if there are problems associated with the probate administration.

A provision in a last will and testament mandating that a particular probate attorney or Florida law firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative. (Back to the Top)

13. HOW ARE ESTATE CREDITORS HANDLED?
Prior to commencement of Florida probate proceedings to probate a will, the Florida law of probate allows a creditor to file a caveat with the Florida court of probate. Upon publication of a notice to creditors a creditor or other claimant may file a probate court document called a "statement of claim" against the probate estate with the probate office of the Clerk of the Circuit Court in Miami-Dade County or in the court of probate where the probate estate is being administered. This claim is generally required to be filed within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month probate timeline is often referred to as the "non-claim period." The personal representative or any other interested person in probate may file an objection to the statement of claim, after which the claimant must file in the Florida probate court a separate independent lawsuit to pursue the claim.

The personal representative is required by the Florida law of probate to use diligent efforts to give actual notice of the Florida probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims with the Florida probate court. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the probate estate until the claim has been satisfied or otherwise disposed of. (Back to the Top)

The personal representative in probate may be required to file other tax returns. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including tax returns that were filed by the decedent or that should have been filed).

The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the probate estate and may be personally liable for those taxes. If a federal estate tax return is required to be filed, an estate tax closing letter is necessary to clear title to Florida real property, and in some instances in order to close the Florida probate administration with the Florida probate court. (Back to the Top)

15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?

The personal representative is required to send a copy of the probate inventory to the Florida Department of Revenue. If a federal estate tax return is not required to be filed with the IRS, then the personal representative is required to record in the public records (and file in a formal estate administration) an Affidavit of No Florida Estate Tax Due. If a federal estate tax return is required to be filed with the IRS, then pursuant to the Florida law of probate the personal representative is required to file a Florida estate tax return, Form F-706, with the Florida Department of Revenue."

Regarding Florida's intangible tax, the Florida Department of Revenue may review the probate inventory to determine whether the probate estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax.

For probate estates required to file a Florida estate tax return, a nontaxable certificate or a tax receipt from the Florida Department of Revenue is required in order to clear title to Florida real property in probate and in order to close a formal Florida probate administration. (Back to the Top)

16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?

Florida public policy as expressed in the Florida law of probate protects the surviving spouse and certain surviving children from total disinheritance. Absent a pre-marital or post marital agreement to the contrary, the Florida probate code provides that a surviving spouse may have Florida exempt homestead rights, elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have exempt Florida homestead rights, pretermitted child rights, family allowance rights, and exempt property rights. The existence and enforcement of these rights is often best handled by a Florida probate lawyer or attorney.(Back to the Top)17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?

Under the Florida law of probate, as with most other states, a decedent may entirely disinherit other potential beneficiaries of the probate estate. (Back to the Top)18. HOW LONG DOES PROBATE IN FLORIDA TAKE?
For Florida probate estates not required to file a federal estate tax return, the final accounting, and other probate court forms and papers to close the probate administration are due within 12 months of issuance of letters of administration. This period can be extended by the Florida probate court, after notice to interested persons.

The federal estate tax return is initially due nine months after death and may be extended by the IRS for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting, probate court forms, and papers to close the Florida probate administration are due within 12 months from the date the federal estate tax return is due. This date is usually extended by the Florida probate court because often the IRS' review and acceptance of the federal estate tax return are not completed within that probate timeline.

Estates that are not required to file a federal estate tax return and that do not involve probate or estate litigation may often close in five or six months. (Back to the Top)

19. HOW ARE PROBATE FEES DETERMINED IN FLORIDA PROBATE?

The personal representative, the Florida probate attorney and other probate professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by the Florida probate code to reasonable compensation.

The probate fee for the personal representative is usually determined in one of five ways: (1) as set forth in the last will and testament in probate; (2) as set forth in a contract between the personal representative and the decedent; (3) as agreed among the personal representative and the persons who bear the impact of the probate fees; (4) as the amount presumed to be reasonable as calculated under Florida probate code if the amount is not objected to; or (5) as determined by the Florida probate judge, applying Florida probate law.

Likewise, the probate fees for the Florida probate attorney for the personal representative is usually determined (1) as agreed among the Florida probate attorney, the personal representative and the persons who bear the impact of the probate fee, (2) as the amount presumed to be reasonable calculated under Florida probate code, if the amount is not objected to, or (3) as determined by the Florida probate judge, applying the Florida law of probate. (Back to the Top)20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?

The Florida probate code provides for several alternate, abbreviated probate filing procedures other than Formal Administration.

Summary Administration is generally available if the value of the probate estate subject to probate adminstration in Florida (less property which is exempt from the claims of creditors) is not more than $75,000 or the decedent has been dead for more than two years.

Under Summary Administration, the Florida probate code provides that the persons who receive the estate assets remain liable for claims against the decedent for two years after the date of death. This probate timeline may be reduced in Summary Administration by publication of notice in a local newspaper.

Another alternative to Formal Administration is "Disposition Without Administration." This is available if probate estate assets consist solely of exempt property (as defined by Florida law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.

If the decedent was not a Florida resident at the time of death, an alternate procedure may be used to admit the last will and testament to probate records in Florida. This probate procedure is used to establish title to Florida real property. When admitted to probate records in any Florida county where the real estate is located, the "foreign will" serves to pass title to the Florida real estate as if the last will had been admitted to probate. This procedure is available only if either two years have passed from the decedent's death or the domiciliary personal representative has been discharged and there has been no probate estate administration in Florida. (Back to the Top)

If the decedent created a revocable living trust with the assistance of a Florida estate planning attorney, in certain circumstances under the Florida law of probate, the trustee may be required to pay expenses of administration of the decedent's probate estate and enforceable claims of the decedent's creditors. In any event, the trustee is required to file a "notice of trust" with the probate court in Miami-Dade County, or where the decedent lived, giving information concerning the settlor and trustee. (Back to the Top)

This material represents general legal information about Florida Probate law. Since the Florida law of probate is continually changing, some provisions may be out of date. It is always best to consult an Florida probate attorney about your legal rights and responsibilities regarding your particular Miami probate matter.